7 WHAT IS A COUP CONTRECOUP INJURY An injury to parts of the brain located on the side opposite that of the primary injury, as when a blow to the back of the head forces the frontal and temporal lobes against the irregular bones of the anterior portion of the cranial vault.

29 NONECONOMIC DAMAGES - EXAMPLES Pain and suffering Loss of enjoyment of life Scarring and disfigurement Embarrassment and humiliation

30 EXCEPTIONS TO AN ELECTION OF LIMITED TORT

31 EXCEPTIONS TO THE ELECTION OF LIMITED TORT A serious injury is sustained The at-fault party (Defendant) is convicted of driving under the influence of alcohol or other controlled substance (or accepts ARD Accelerated Rehabilitative Disposition) The at-fault party (Defendant) is operating a vehicle registered in another state The at-fault party (Defendant) intentionally caused the collision in order to injure himself or another person The at-fault party (Defendant) does not have insurance The injured person is a passenger of a vehicle that is not a private passenger motor vehicle (ex: a bus)

32 FULL TORT OR LIMITED TORT???

33 FULL TORT OR LIMITED TORT??? OPEN FRACTURE OF THE SKULL RESULTING IN A SCAR ABOVE THE EYE

34 FULL TORT OR LIMITED TORT??? LACERATION OF THE FOREHEAD RESULTING IN A SCAR WITH A SUBDURAL HEMATOMA

35 FULL TORT OR LIMITED TORT??? SUBDURAL HEMATOMA

36 FULL TORT OR LIMITED TORT??? CONCUSSION

37 MOST INSURANCE COMPANIES DO NOT AUTOMATICALLY VIEW A CLOSED HEAD INJURY AS A SERIOUS INJURY

38 PART TWO THE ATTORNEY-CLIENT RELATIONSHIP

39 WHO IS THE CLIENT?

40 WHO IS THE CLIENT FIRST AND FOREMOST THE INJURED INDIVIDUAL, EVEN IF DECLARED TO BE INCAPACITATED BY A COURT OF LAW But Also A GUARDIAN IF NECESSARY

41 WHEN SHOULD A GUARDIANSHIP BE CONSIDERED?

42 Incapacitated Person 20 Pa.C.S [A]n adult whose ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that he is partially or totally unable to manage his financial resources or to meet essential requirements for his physical health and safety.

43 Incapacitated Person Difficulty receiving and evaluating information Inability to manage financial affairs Inability to make decisions regarding his or her medical care Inability to make decisions regarding his or her health and safety

44 Purpose of Guardianship Statutes 20 Pa.C.S Recognizing that every individual has unique needs and differing abilities, it is the purpose of this chapter to promote the general welfare of all citizens by establishing a system which permits incapacitated persons to participate as fully as possible in all decisions which affect them, which assists these persons in meeting the essential requirements for their physical health and safety, protecting their rights, managing their financial resources and developing or regaining their abilities to the maximum extent possible and which accomplishes these objectives through the use of the least restrictive alternative; and recognizing further that when guardianship services are necessary, it is important to facilitate the finding of suitable individuals or entities willing to serve as guardians.

45 Two Main Types of Guardianships Guardian of the Person: Protection of the individual, including but not limited to things such as: o decisions relative to general care, maintenance and custody of the incapacitated person. o designating the place for the incapacitated person to live. o assuring that the incapacitated person receives such training, education, medical and psychological services and social and vocational opportunities assisting in the development of maximum self-reliance and independence. o providing required consents or approvals on behalf of the incapacitated person. Guardian of the Estate: Protection of assets or income (financial).

46 Limited Guardianship Versus Plenary Guardianship Limited Guardianship: The guardian does not have total control over decisions, and the incapacitated individual retains the ability to control certain aspects of person or estate. The guardian is given only the powers set forth in the Order of Court. Plenary Guardianship: The guardian is given total control over all decisions, which requires a court finding of total incapacity.

47 Who May Be Appointed as a Guardian - 20 Pa.C.S. 5511(f) Any qualified individual A corporate fiduciary A non-profit corporation A guardianship support agency A county agency In cases of residents of State facilities, the guardian office of the State facility (but only as Guardian of the Estate)

48 Who May Be Appointed as a Guardian - 20 Pa.C.S. 5511(f) If appropriate, the court shall give preference to a nominee of the incapacitated person.

49 EVEN IF A GUARDIAN IS INVOLVED, WHAT IS THE ATTORNEY S DUTY TO THE INJURED INDIVIDUAL?

50 WHO IS THE CLIENT PA RULES OF PROFESSIONAL RESPONSIBILITY (a) When a client s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. PA Rule of Professional Responsibility 1.14

51 WHO IS OUR CLIENT PA RULES OF PROFESSIONAL RESPONSIBILITY The fact that a client suffers a diminished capacity does not diminish the lawyer s obligation to treat the client with attention and respect. Even if the person has a legal representative, the lawyer should as far as possible accord the represented person the status of client, particularly in maintaining communication. The client may wish to have family members or other persons participate in discussions with the lawyer. When necessary to assist in the representation, the presence of such persons generally does not affect the applicability of the attorney-client evidentiary privilege. Nevertheless, the lawyer must keep the client s interests foremost and, except for protective action authorized under paragraph (b), must look to the client, and not family members, to make decisions on the client s behalf. Comments - PA Rule of Professional Responsibility 1.14

54 PROVING A TRAUMATIC BRAIN INJURY IN A COURT OF LAW Preserving evidence, especially if the injured individual does not have recollection of the events Recreating the events Illustrating the severity of injuries to insurance company and/or defense counsel, especially in closed head injury cases: o o o o unlike fracture cases, sometimes it is difficult to visualize a CHI and its impact on an individual obtaining video footage to show the realities of living with a TBI obtaining necessary reports from physicians to explain the impact of the TBI on activities of daily living interviewing family and friends that can testify relative to changes in someone s life

55 PART FOUR PROTECTING ASSETS GENERATED BY PERSONAL INJURY AWARDS

56 SPECIAL NEEDS TRUST

57 o State will receive all amounts remaining in the trust upon the death of such individual up to an amount equal to the total medical assistance paid on behalf of the individual under a state plan SPECIAL NEEDS TRUST An irrevocable trust established for the sole benefit of a disabled individual, and often funded with the assets of a personal injury settlement IndividualTrust -- Typical Trust (Type A ): o Contains the assets of an individual under age 65 o The beneficiary is disabled: Blind (visual acuity 20/200 or less with the use of corrective lenses) Unable to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment expected to result in death or lasted/can be expected to last for not less than 12 months o Can be established by a parent, grandparent, legal guardian, or a court (NOTE: an individualcannot establish his/her own Family Trust)

58 o State will receive all amounts remaining in the trust upon the death of such individual up to an amount equal to the total medical assistance paid on behalf of the individual under a state plan Type C Trust (PooledTrust): SPECIAL NEEDS TRUST o Contains the assets of an individual who is disabled (NOTE: no age limit) o The beneficiary is disabled: Blind (visual acuity 20/200 or less with the use of corrective lenses) Unable to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment expected to result in death or lasted/can be expected to last for not less than 12 months o The trust is managed by a non-profit association o A separate account is maintained for each beneficiary, but for the purpose of investment the assets are pooled o Can be established by the individual his/herself, a parent, grandparent, legal guardian, or a court

59 GUARDIANSHIP ACCOUNT VERSUS SPECIAL NEEDS TRUST

60 GUARDIANSHIP ACCOUNT VERSUS SPECIAL NEEDS TRUST Guardianship Account: assets belong to the ward. In relation to eligibility requirements for certain benefits, the assets are counted and could disqualify an individual. Special Needs Trust: assets belong to the trust, and are not counted as being available to the trust beneficiary if drafted to conform to OCRA 93. In relation to eligibility requirements for certain benefits, the assets are counted and could disqualify an individual.

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